2012 Submission to the UN Commission on the Status of Women: The Legal Category of Sex and Understanding the Status of Women

This communication represents a fundamental shift in the framing of feminist concerns about the legal codification of “gender identity.” It refocuses attention on the experiential realities of being born female by demanding that sex be prioritized as independently significant to both understanding and improving the status of women.

An important announcement follows the text.

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July 26, 2012

CSW Communications Procedure

Human Rights Section

UN Women

220 East 42nd Street, 17th floor

New York, NY 10017

USA

To Whom It May Concern:

In response to the United Nations Entity for Gender Equality and the Empowerment of Women’s call for communications dated June 26, 2012 [i] regarding allegations of human rights violations affecting the status of women, I am writing in follow-up to the collaborative communication I submitted last year in association with Cathy Brennan, Esq. (see attached). At that time, we brought to your attention our growing concerns about American “gender identity” legislation and the threat it presents to the preservation of female sex-segregated spaces as a consequence of deliberately vague and overbroad definitions that frame one’s internally felt “gender identity” as a substitute for legal “sex” without any duration, medical documentation, improper purpose prohibition, or other requirements.

I do not wish to dismiss the feelings or experiences of trans* individuals who may sincerely identify with the mythology of femininity (or masculinity). I sympathize with their human pain and firmly believe that everyone has a right to express their “gender” by any and all means possible without social punishment. I agree that being born into a male body does not naturally lead one to act or feel masculine; and that being born into a female body does not naturally lead one to act or feel feminine. In fact, if we were to accept such an antiquated theory of gender essentialism, it would logically require us to conclude that male violence [ii] has a biological component, implicitly justifying the behavior and rendering it inevitable. I do not believe this. Feminists do not believe this.

This year, my singular appeal to the Commission on the Status of Women is that all future policy directly or indirectly affecting sex does not, under any circumstances, confuse or replace physical sex with ambiguous notions of self-defined “gender” or “gender identity.” Particularly in the context of formal decrees, the words sex and gender must not be used interchangeably. This is because it is inaccurate, [iii] but more importantly, because it limits the ability of women to seek protection for the full range of human rights violations that we face as a result of our sex from birth. “Gender identity” laws, including the UK’s Gender Recognition Act of 2004,[iv] create a legal understanding of sex that reinforces normative and strictly oppositional stereotypes of sex-based appearance and behavior. This is regressive, not progressive. The analysis below will illuminate why maintaining a strong conceptual distinction between sex and gender is critical to understanding the status of women and, therefore, to the protection of all women’s human right to be free from stereotypical attitudes towards the role and responsibilities of women.

Women’s oppression can be understood as operating on at least two separate axes. The first is reproductive exploitation of female bodies. The systemic nature of this sex-based abuse is both achieved by and evidenced through widespread practices such as religiously mandated heterosexuality, arranged marital ownership of women by men and enforced by violence, and rape as a weapon of war (including ethnic cleansing). These represent the specific institutionalized mechanisms by which female bodies are sexually colonized and exploited by male bodies. The end result is that women, children, and human reproduction generally, have been traditionally controlled by adult men and adult male interests.

The basic physical nature of sexual dimorphism, characteristic of all mammalian reproduction, is inevitable. It is imminently reasonable to assume that sexed bodies will continue to exist as long as humans do. No amount of legislation is going to change that. Feminism’s central point is that the institutionalized exploitation of sexual dimorphism for the purpose of creating and maintaining patriarchy (i.e., male domination of females) is not inevitable. Addressing and eliminating human rights violations against women therefore requires us to acknowledge that the existential reality of sex-and-reproduction is fundamental to understanding the social status of women–past, present, and future.

My objection to “gender identity” is that where legal definitions of sex are reducible to the subjectively felt “gender identities” of trans* people, the connection between sexualized violence and reproductive exploitation of female bodies becomes invisible. The unintended consequence is that it also becomes impossible for women to specifically address this aspect of our oppression on an institutional level. [v] Women’s attempts to discuss state control of female reproductive issues are considered “cissexist” and “transphobic” by some members of the trans* community.[vi] Yet in order for the full scope of human rights violations against women to be rectified, we cannot ignore the ways in which reproductive exploitation of females has been leveraged to sustain patriarchy. The inevitability of physical sex and reproductive dimorphism must be understood as legally relevant in its own right and separate from any notion of a subjective “gender identity.”

The second axis on which women’s oppression operates is via stereotypical attitudes towards the role and responsibilities of women. Stereotyping is the act of making an assumption about an individual based on her membership in a specific group, which then serves as moral justification for the enforcement of sex-based social roles that limit women’s autonomy and right to self determination. These heteronormative social roles are inherently unequal because they prescribe male control of the public sphere–including governmental participation and ownership of all public spaces– while simultaneously relegating females to the unpaid private sphere where women are responsible for virtually everything, but are actually in control of almost nothing. Largely shocking to many modern Western minds, even human rights champion Gandhi was once convinced that he, as a man and as a husband, was morally entitled to beat his wife.[vii]

To quote feminist Gloria Steinem:

…Olof Palme, the great former prime minister of Sweden, [] said that gender roles are the deepest cause of violence on earth, and it’s up to governments to humanize them. Gender roles may give us our first idea that it’s okay for one group to eat and the other to cook, one to talk and the other to listen, one to order and the other to obey, one to be subject and one as object. The most shared characteristic of original societies in which violence was only for self-defense, not armies — and of the most egalitarian societies now — is that gender roles are fluid and not polarized.[viii]

In last year’s communication, Brennan and I explained how “gender identity” laws reify these gender roles by recasting them as freely chosen “identities” magically detached from all social and historical contexts, rather than recognizing that such gender roles are both arbitrary and harmful, especially to female-born humans:

…definitions of “gender identity” that suggest or codify into law that there are ways of expressing one’s self (or behaviors or appearances) “consistent or congruent with biological sex” present a risk to females, as such definitions codify the notion of stereotypes based on sex into law. Traits stereotypically assigned to females – such as care-taking, emotionalism, and weakness – have served as sufficient legal justification for women’s exclusion from employment, participation in government, and many other critical social functions. Archaic stereotypes are directly responsible for the denial of female credibility and intellectual authority, in addition to causing the historical marginalization of females, lower social status vis-à-vis males, and lack of power to engage equally with males. Even where law has evolved to formally prohibit sex-stereotyping; women continue to suffer from the lingering effects of sexist ideologies about female inferiority. So although we support every individual’s right to freely express their gender identity, it is absolutely critical that law not confuse “feminine expression” with [sex].

The moment a female human is born, the hegemony of sex-based stereotypes are attached to her and coercively direct the social trajectory of her life. Her possibilities are severely restricted; there is no conscious beginning and no voluntary end to this sex-based social tracking for most women in the world. Being female, and therefore being subject to a lifetime’s worth of female-based sexual exploitation and stereotyping, is an immutable condition for all but a few self-appointed trans* men who are able to successfully pass as the opposite sex. For the vast majority of the world’s women, however, the demands of the female gender role are not cause for celebration. We did not consent to these stereotypes. We did not ask to be treated as second class citizens; we have no choice. It is not our “gender identity” to embrace stereotypes about the role and responsibilities of women. This is a second significant way in which framing “gender identity” as a substitute for legal sex, by failing to capture the mechanics of female oppression, invisibilizes the experiential reality of being born into a female body and makes it more difficult for women to address the complexity of human rights violations against us as a class.

People who bravely defy sex-based stereotypes remind us that being born into a male body does not naturally lead one to act or feel masculine and that being born into a female body does not naturally lead one to act or feel feminine. These people, whether they apply the trans* label to themselves or not, deserve specialized legal protection from harassment and discrimination. But this protection should be effectuated as a legal prohibition against the enforcement of gender roles and related stereotyping. Redefining “sex” as an amalgamation of pre-existing stereotypical characteristics that we currently associate with females or “women ”– ostensibly as a means of protecting trans* people– is harmful to the rest of the world’s women. Compliance with feminine stereotypes and gender roles is not what constitutes being a woman. “Gender identity” laws that “…codify the notion that there are traits, manners of expression, or modes of appearance that are inconsistent or consistent with one’s biological sex“[ix] is a violation of the human rights of women.

The Commission on the Status of Women should not reinforce stereotypical attitudes towards the role and responsibilities of women by confusing sex with “gender” or “gender identity” in any future policies or formal communications. “Gender identity” misrepresents the status of women as being solely about internal identification with sex-based stereotypes and gender roles, thereby making it more difficult for females to address the full range of human rights violations that we face as a result of our sex—from cradle to grave.